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The Internet and social media have empowered us to communicate like never before. Unfortunately, cyberspace also has a dark side, because it provides a platform for Internet users to anonymously publish false information that can be professionally and personally devastating. Whether it is a calculated attack by a competitor or former employee or a spontaneous rant by a disgruntled customer or personal enemy, online anonymous defamation can cause serious harm to a business or person resulting in massive financial losses and permanent reputational injury. Since Internet postings can be accessed by individuals all over the world and most postings remain online permanently, how do you restore your reputation after you have been the victim of online anonymous defamation?

 
1. Preserve the Postings

 

Take screenshots and send evidence preservation letters to the Internet Service Providers ("ISPs") or host websites where the postings appear.
 
2. Request that the ISPs or Host Websites Voluntarily Remove the Postings

 

Although many websites are not receptive to this request because the Communications Decency Act of 1996 holds that ISPs or host websites cannot be held liable for defamation made by third parties because ISPs are considered "intermediaries" for others' online "free speech", many websites have content standards and they will remove postings that are plainly false or malicious.
 
3. Write a Rebuttal and Consider Hiring a Public Relations Firm

 

Refute the allegations through an immediate rebuttal to ensure that your customers know that you deny the false allegations. Include a statement in the rebuttal that you may pursue legal action. A public relations firm can assist with drafting the rebuttal and publishing new positive content. Utilize search engine optimization techniques to try to push the defamatory postings to the 2nd or 3rd page of search results.

 

4. Determine Whether the Postings are Legally Actionable as Defamation or Libel

 

Defamation is a publication that is false, derogatory, unprivileged and that has a natural tendency to cause injury or special damage. Despite the feelings of keyboard courage or anonymity that embolden some Internet posters, under the law anonymous statements made online can constitute defamation. The core issue is whether a statement asserts, either explicitly or implicitly, a provably false statement of fact. Mere statements of opinion (e.g., an expression of a person's feelings that cannot be proven true or false) are generally not actionable under defamation law. The more a statement implies a definitive act that can be proven to be true or false the more likely it is to be a statement of fact which could potentially qualify as defamation.
 
5. If the Postings Are Actionable, File a Lawsuit Against "John Doe" to Obtain Subpoena Power

 

By filing a defamation/libel lawsuit against "John Doe" you will obtain subpoena power. Subpoenas should be immediately served on the ISPs to obtain the registrant information used to make each posting and, more importantly, the IP address. While it is nearly impossible to trace a posting to a particular individual, it is often possible to trace it to a particular computer and then use circumstantial evidence to establish the identity of the individual or entity responsible for the posting.
 
6. After Obtaining the IP Address Find Out Who Owns It

 

Each IP address on the Internet is administered by one of five Regional Internet Registries ("RIR") and the applicable RIR reveals the owner or host of a particular IP address. Confirm the ISP for the IP address at issue and then serve a subpoena to learn the legal name and physical address of the individual using that IP address on the date in question.
 
7. Amend the Complaint to Add the Responsible Individual or Entity as a Named Defendant

 

After the identity of the owner of the IP address is confirmed, amend the lawsuit to add the responsible individual and his or her company as named defendants in the lawsuit. Immediately seek records that will establish that the culprit was "in town" when the postings were made (e.g., credit card charges, bank records, etc.).
 
8. Subpoena Customer Analytic Records to Prove the Number of Views of the Postings

 

Many ISPs maintain customer analytic records showing the IP addresses that viewed particular postings on their website. Woopra is a leading company providing this service. This data is often maintained to allow a website to sell advertising space by telling an ad buyer that they have a certain number of visitors to their website each day and the location of the visitors.
 
9. Gather Evidence of Lost Customers and Revenue to Establish the Provable Amount of Damages

 

Although defamation and libel may carry "presumed" damages, jury instructions in many states advise juries that the amount of such damages is solely within their discretion and they may determine that $1 is sufficient. Therefore, you must be prepared to prove causation and damages even if the postings constitute clear libel or even libel per se.
 
10. As Part of a Settlement or Judgment Insist Upon a Court Order that Determines the Specific URLs to be False and Defamatory

 

Most internet search engines such as Google, Bing and Yahoo have policies stating that they will only de-index (i.e., remove from search results) a posting or uniform resource locator ("URL") after being presented with a court order that determines the content to be false and defamatory. Seek such a stipulated court order in connection with any settlement or ask for it as part of a judgment if the case proceeds to trial.

 

In conclusion, even though the Internet makes it remarkably easy to anonymously defame an individual or company, a properly handled legal action can help you restore your reputation and pursue monetary damages if you are the victim of an online attack.
Region: United States
The information in any resource collected in this virtual library should not be construed as legal advice or legal opinion on specific facts and should not be considered representative of the views of its authors, its sponsors, and/or ACC. These resources are not intended as a definitive statement on the subject addressed. Rather, they are intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers.
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